A recent indictment in a state court in La Plata County, Colorado, has ruffled feathers in the defense bar. The accused was one of our own, criminal defense attorney Brian Schowalter. The charge was based on Schowalter’s refusal to turn over evidence he ostensibly held for a client. The evidence, an original letter, was apparently relevant to a homicide investigation involving the attorney’s client (though it appears that this material was not protected by attorney-client privilege).

This is the kind of scenario that keeps defense lawyers awake at night: might you someday face criminal charges for aggressively protecting the interests of your client? So when Schowalter appeared in court to be formally advised of the felony charge against him, it was not too surprising that 10 criminal defense lawyers sat behind him in an apparent show of solidarity, and to signal to prosecutors that they will not buckle easily to pressure.

While few facts about the matter have been publicized, the central question for many is why would the prosecutor choose such a drastic approach?

The indictment charges Schowalter with unlawfully tampering with physical evidence in a homicide investigation. The prosecutor in the matter argues that he used every means available to obtain the evidence. (It would be nice to know exactly what procedural steps the prosecutor undertook before unleashing the proverbial nuclear bomb.) When the prosecutor subpoenaed the letter, Schowalter asserted his Fifth Amendment rights.

It is not clear from the facts currently available, but it is possible that Schowalter’s actions would support a disciplinary proceeding for potential ethics violations. Colorado Rules of Professional Conduct provide that a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully . . . conceal a document or other material having potential evidentiary value.” So why didn’t the prosecutor report Schowalter’s alleged misconduct to the Colorado bar? That would be a more typical – and arguably more appropriate – response to potential issues of professional misconduct.

Did the prosecutor take such a heavy-handed approach because of Schowalter’s decision to assert his Fifth Amendment rights? It seems a bit unusual for a defense attorney to plead the Fifth in response to a demand for client documents. Schowalter’s response implies an admission that his previous action of withholding the letter could lead to more serious charges, an action that may have invited an already-irritated prosecutor to pursue criminal charges rather than a state bar action.

The lesson from this case may be: if you believe that client documents in your possession are legally protectable, fight vigorously by employing the procedural mechanisms available (e.g., a motion to quash). But don’t invite a bigger battle through obstinacy. Of course, if the defense bar continues to hold its line in the matter, there may be a lesson or two for the prosecutor, starting with a road map to a more appropriate legal action – based on ethics sanctions as opposed to criminal penalties.

Florida judges acknowledge that “justice requires the appearance of justice.” And given some of the controversial verdicts coming out of the Sunshine State — Casey Anthony and George Zimmerman come to mind — it seems more important than ever for the Florida judiciary to protect its institutional integrity. That might explain why the Florida Supreme Court doubled the recommended suspension of a state prosecutor who failed to disclose numerous ex parte contacts with a sitting judge.

On June 20, that court upheld a finding that Howard Scheinberg engaged in conduct that was prejudicial to the administration of justice. The disciplinary action against Scheinberg pertained to the prosecution of Omar Loureiro. In 2007, Scheinberg was the lead prosecutor in a capital murder trial against Loureiro. Former Judge Ana Gardiner was the presiding judge. As a result of that trial, Loureiro was found guilty of first-degree murder and sentenced to death.

Months after the trial concluded, evidence surfaced that Scheinberg had been romantically involved with the judge. During the five months between the jury verdict and sentencing hearing, Scheinberg and Gardiner had exchanged more than 900 phone calls and more than 400 text messages. On average, Scheinberg had communicated with the judge almost 10 times a day during that time but had never disclosed the contacts to opposing counsel.

When the Broward State Attorney’s office learned of the misconduct, it promptly agreed to retry Loureiro: only a second trial could dispel public perceptions that Loureiro had been denied due process.

When the Florida State Bar learned of the misconduct, it promptly initiated disciplinary action. After the complaint was filed, a referee was appointed. She conducted a hearing and issued a report with her findings and recommendations. First, the referee found that Scheinberg’s ex parte contacts and his failure to disclose them prejudiced the judicial system in violation of Florida’s ethics rules. Based on her findings of aggravating and mitigating factors, she recommended a one-year suspension from the practice of law.

Scheinberg challenged the referee’s recommendation as to guilt and the one-year suspension, but received no relief. Instead, the Supreme Court agreed that Scheinberg was guilty of misconduct, even though his contacts with the judge were unrelated to Loureiro’s murder trial. The court explained that Scheinberg’s extensive contacts with Judge Gardiner created “an appearance of impropriety.”

When an attorney becomes romantically involved with the judge presiding over his case, “the judge’s authority necessarily suffers,” the court concluded. First, the relationship itself undercuts the judge’s role as a detached neutral party. Moreover, when a judge presides over cases involving her romantic partner, she loses her single most important source of authority — the perception that she is absolutely impartial.

The court then addressed the recommended sanction. Although it found no error with the referee’s findings on aggravating and mitigating factors, the court held that a one-year suspension was not sufficient. Scheinberg’s conduct created an appearance of impropriety based on substantial communications that were never disclosed to the defense. And it all occurred in the context of a capital murder trial!

The resulting harm was obvious: Scheinberg’s conduct led to an investigation and a retrial, both of which consumed public and private resources. In the court’s view, the seriousness of Scheinberg’s violation and resulting prejudice to the administration of justice required a suspension twice as long. On that basis, the court suspended Scheinberg for two years and ordered him to cover the Florida Bar’s costs.

The intersection of domain names and the First Amendment is not new. Indeed, in the early days of the domain name system, courts considered the issue of whether a domain name registrar could prohibit the registration of domain names on the basis of content – for instance, domain names containing profanities. See Nat’l A-1 Advertising, Inc. v. Network Solutions, Inc., 121 F. Supp. 2d 156 (D.N.H. 2000); Seven Words LLC v. Network Solutions, Inc., 260 F.3d 1089 (9th Cir. 2001). However, the U.S. Court of Appeals for the Fifth Circuit recently was confronted, in Gibson v. Texas Dep’t of Insurance, with a new twist on the First Amendment as it applies to domain names: whether a particular domain name is pure “commercial speech” (entitled to only limited First Amendment protection) or “expressive speech” (entitled to more extensive protection).

The Texas Labor Code prohibits the use together of the words and phrases “Texas,” and “Workers Compensation,” or similar abbreviations. Nonetheless, Gibson, a workers compensation lawyer in Texas, registered the domain name texasworkerscomplaw.com. On the associated website, Gibson discusses matters relating to Texas workers compensation law and, of course, advertises his law practice. The Texas Department of Insurance took offense to Gibson’s domain name, and sent Gibson a cease and desist letter. Gibson, being a lawyer, sued in federal court, alleging that the Texas Labor Code restrictions violated his constitutional rights.

The Fifth Circuit, in an interesting opinion, addressed the commercial speech/pure speech dichotomy inherent in domain names used by commercial enterprises, but artfully dodged the question of whether the domain name was in fact commercial speech. Instead, the court first analyzed whether, if the domain name was in fact commercial speech (which can under some circumstances be restricted), it was the sort of commercial speech that the Texas Department of Insurance could restrict.

The court found, correctly, that commercial speech can be restricted only if it is “inherently likely to deceive.” The state argued that Gibson’s domain name implied a connection with or approval of the state. The Fifth Circuit dispensed with the state’s argument, noting that since there was nothing to suggest that texasworkerscomplaw.com could not be viewed in a non-deceptive fashion (a truism), the state could not restrict the use of the domain name as commercial speech.

There is a second exception allowing a restriction on commercial speech: A state may regulate non-deceptive commercial speech if the restriction “advances a substantial state interest” and is narrowly tailored to serve that interest. On this issue, the Fifth Circuit sent the case back to the federal district court to develop a factual record. It seems unlikely that the Texas Department of Insurance will prevail in the end, as the statute on which its objection is based is vastly overreaching, and would prohibit anyone providing services relating to workers compensation in Texas from registering domain names that accurately describe what they do. For instance, a physician who performs workers compensation examinations could not register texasworkerscompdoc.com (as of this writing, this domain name is available for the taking).

Obviously, such a domain name is not misleading, and there is no legitimate basis upon which the state can restrict it. Domain names are often a form of speech. Just because they are a relatively new format of expression does not change this fact and give the government a basis to attempt to restrict their use.

The Supreme Court will soon be considering whether to take up an interesting question involving when monetary sanctions may be imposed for prosecutorial misconduct. More than 50 former federal judges and U.S. attorneys are pushing to get an 11th Circuit Court of Appeals ruling from last year overturned. In early August, the former judges and prosecutors signed onto an amicus brief that urges the Supreme Court to grant certiorari in United States v. Shaygan. The defendant is appealing the appeals court’s overturning of a lower court’s award of more than $600,000 in attorneys’ fees to him after the unsuccessful prosecution of his case.

Shaygan, a Miami doctor, was charged with trafficking illegal drugs following the overdose death of a patient. Events leading up to his trial demonstrated serious ethical questions about the prosecutors’ handling of the case. For instance, after Shaygan’s counsel moved to suppress testimony that was illegally obtained, in an act of retaliation the prosecution filed a 141-count superseding indictment. The prosecution initiated a collateral witness-tampering investigation in what defendants saw as a bad-faith effort to disqualify petitioner’s counsel on the eve of trial. And, in a “knowing and intentional” violation of court orders and discovery obligations, the prosecution withheld material information from both the court and the defendant. These actions led the trial court to impose sanctions because the prosecutors’ misconduct constituted “conscious and deliberate wrongs that arose from the prosecutors’ moral obliquity and egregious departures from the ethical standards to which prosecutors are held.”

The government appealed to the 11th Circuit, where a sharply divided panel overturned the trial court. The circuit’s rationale was based upon its interpretation of the statute,the Hyde Amendment, that provides for the award of attorneys’ fees and other litigation expenses “where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.”

The circuit ruled that sanctions were not appropriate because the superseding indictment was objectively valid. And if the underlying (or superseding) indictment could be deemed objectively reasonable, the prosecution could not be held vexatious or frivolous and thus attorneys’ fees were not merited. See our earlier discussion of this issue in this blog.

The court’s holding raised the eyebrows of many former federal judges and prosecutors as well as scholars. Their main contention appears to be the 11th Circuit’s reading of the clause “vexatious, frivolous, or in bad faith.” The amicus brief filed on behalf of the former judges and prosecutors raised two main arguments for why the 11th Circuit’s decision was wrong: (1) based upon the canons of statutory construction, sanctions under the Hyde Amendment are appropriate when prosecutors act in subjective bad faith, even if an indictment is supported by probable cause; (2) acknowledging a subjective standard helps judges control their courtrooms and provides a necessary tool to address prosecutorial misconduct.

The first argument focuses on the “or” in the Hyde Amendment’s provision for sanctions where a prosecutor’s position is found to be “vexatious, frivolous, or in bad faith.” The amici argue that the disjunctive “or” separates the “bad faith” prong from the “vexatious” and “frivolous” prongs, indicating that bad faith can serve as an alternative basis for relief under the Hyde Amendment. Their reading of the statute, they argue, “comports with our basic principles of criminal justice. Our system’s greatness rests, in part, on our insistence that the process be conducted in a principled, clean manner. Thus, for example, we permit the guilty to go free when the evidence against them was obtained in violation of their Fourth Amendment rights. We suppress coerced confessions, even when they bear every indicia of reliability. And we do not permit the prosecution even of a guilty person on the grounds of that person’s race. ”

The amici’s second argument emphasizes the need to provide judges with control over their courtrooms, and the need to impose appropriate sanctions for prosecutorial misconduct. To rein in the overzealous, overreaching, or rabid prosecutor, the Hyde Amendment sanctions provide an important mechanism to restore control. The amici note that other sanctions, such as complaints with bar associations, have proved ineffective over the years and that prosecutors are immune from most lawsuits relating to their official conduct.

It remains to be seen whether the Court will take up the Shaygan case — the chances of the Court ever granting certiorari are pretty slim. But a strongly-worded amicus brief from more than 50 former prosecutors and judges and a notably sharp divide in the 11th Circuit could persuade the Court.

In November, we reported on the unusual indictment in the District of Maryland of Lauren Stevens, then an in-house attorney at GlaxoSmithKline, on charges of obstruction of justice, falsifying and concealing documents, and making false statements in a civil discovery context. Stevens’ indictment arose from her alleged failure to disclose documents to the Food and Drug Administration concerning, among other things, GSK’s alleged off-label promotions of its antidepressant drug Wellbutrin for weight loss.

The government seemed to be using this unusual indictment as an opportunity to test the limits of lawyers’ zealous representation of their clients. In his opening statement, U.S. Department of Justice attorney described Stevens as a “lawyer who went too far” by “put[ting] loyalty to her company above fidelity to the truth and to the law.”

However, that effort was dealt a decisive blow by U.S. District Judge Roger Titus’ surprising May 10 opinion granting Stevens’ motion for judgment under Rule 29 of the Federal Rules of Criminal Procedure. The judge took the case away from the jury, finding that there was insufficient evidence to sustain a guilty verdict on the facts that the government had presented.

Judge Titus wrote that the evidence “can only support one conclusion” – that Stevens relied on the advice of in-house and outside counsel in her discovery responses to the FDA.

“Every decision that she made and every letter she wrote was done by a consensus. Now, even if some of these statements were not literally true, it is clear that they were made in good faith, which would negate the requisite element required for all six of the crimes charged in this case,” the judge wrote.

Even the statements by Stevens that the government alleged were false, the judge concluded, could not be considered false, beyond a reasonable doubt, when considered in context.

Judge Titus went on to discuss the role of lawyers in the adversarial system: “There is an enormous potential for abuse in allowing prosecution of an attorney for the giving of legal advice. I conclude that the defendant in this case should never have been prosecuted and she should be permitted to resume her career. The institutional problem that causes me a great concern is that while lawyers should not get a free pass, the Court should be vigilant to permit the practice of law to be carried on, to be engaged in, and to allow lawyers to do their job of zealously representing the interests of their client. Anything that interferes with that is something that the court system should not countenance.”

It’s unethical for a prosecutor to put a witness on the stand in a criminal trial when he or she knows in advance that the witness is going to take the Fifth Amendment and refuse to testify at all.

Legal ethics authorities reason that the only effect of that kind of testimony is not to bring out relevant evidence but simply to prejudice the jury against the witness. After all, the jury would conclude, if the witness didn’t have something to hide, why did he or she take the Fifth? It’s a violation of the witness’s constitutional rights to permit that kind of inference to be made by a jury.

What about testimony before a congressional committee? Can a lawyer for a committee haul a witness before the panel, knowing that the witness will claim the Fifth Amendment?

In Washington, D.C., where congressional probes often go on at the same time as parallel criminal prosecutions, that can be a key question.

The Legal Ethics Committee of the D.C. Bar has issued an opinion that opens the door considerably wider than before for congressional staff lawyers to do this.

In an opinion issued in January, the committee wrote that an earlier opinion on the subject that it wrote in 1977 should be interpreted in a limited manner. At that time, it wrote that it is improper to call a witness to a congressional hearing “when it is known in advance that no information will be obtained and the sole effect of the summons will be to pillory the witness.”

The new opinion makes it clear that “there may be legitimate reasons for a congressional committee to summon a witness who expresses an intention to assert her privilege against self-incrimination.” Thus, the bar committee found that the Rules of Professional Conduct are violated only if “there is no substantial purpose in calling a witness other than embarrassment, burden, or delay.”

There’s no blanket rule that this type of testimony is prohibited; it is unethical, the committee wrote, only when summoning the witness “will provide no information to the committee and (2) is intended merely to degrade a witness.”

Since a congressional committee lawyer can almost always think of some reason to call a witness other than embarrassment, burden, or delay, the new opinion makes it significantly more likely that congressional panels will try to take this step. We suggest that defense lawyers need to be aware of this tactic. If it won’t necessarily convict their client in court, it can go a long way towards convicting the client in the court of public opinion.

Last December, another legal ethics commission addressed the question of whether a judge may become a “friend” on a social networking site with attorneys who appear as counsel in the judge’s courtroom. The Ohio Supreme Court Board of Commissioners on Grievances and Discipline opined that a judge may “friend” attorneys as long as the judge takes care to protect the integrity and impartiality of the judiciary.

Given the explosion of social networking sites over the last decade, it is surprising that relatively few ethics committees have addressed the issue. (The paucity of opinions on the topic suggests that social networking misconduct is not a huge problem. To date, only one North Carolina judge has been publicly reprimanded for misusing his Facebook account.) Ohio is only the fifth state to issue an opinion regarding judges’ use of social media and the fourth to favor content-based restrictions over media-based restrictions. Like Ohio, ethics committees in Kentucky, New York, and South Carolina concluded that judges may participate on social networking sites. The Kentucky and New York committees qualified their opinions by stating that judges should be mindful of whether online connections, alone or with other facts, amount to a close social relationship that should be disclosed or that requires recusal. Florida is the only jurisdiction to opt for a bright-line rule against judges “friending” attorneys who may appear in the judge’s courtroom.

The Ohio Board’s December 3, 2010, decision may be an early signal that critical mass is forming around content-based restrictions on Internet use. The well-reasoned decision applied settled rules and canons to social networking. The single thread running through the Board’s pronouncements is that the judiciary must be and appear to be impartial. Otherwise, public confidence will erode, diminishing the prestige and strength of the judiciary. To that end, the Board urged judges to “maintain dignity” and to disqualify themselves when social networking relationships create bias or prejudice. The Board further instructed judges not to foster communications that erode confidence in the judiciary, not to comment on matters pending before the judge, not to use social networking sites to gather information about matters before the judge, and not to give legal advice.

Other state ethics committees surely will have more to say on this issue. Technology is increasing exponentially as is the speed of technological change (think Moore’s Law). Now more than ever before, it’s important for our legal institutions to keep pace.

Crime in the Suites is authored by the Ifrah Law Firm, a Washington DC-based law firm specializing in the defense of government investigations and litigation. Our client base spans many regulated industries, particularly e-business, e-commerce, government contracts, gaming and healthcare.